390 F2d 608 Spotted Elk v. J Norton

390 F.2d 608

Adam SPOTTED ELK, Appellant,
v.
John J. NORTON, Warden, Federal Correctional Institution,
sandstone, Minnesota, Appellee.

No. 18909.

United States Court of Appeals Eighth Circuit.

March 5, 1968.

Adam Spotted Elk, pro se.

Patrick J. Foley, U.S. Atty., and J. Earl Cudd, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before VOGEL, Senior Circuit Judge, LAY, Circuit Judge, and BECKER, Chief District Judge.

PER CURIAM.

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This is an appeal from a dismissal by the United States District Court for the District of Minnesota of Appellant's petition for a writ of habeas corpus. Appellant originally was convicted in the United States District Court for the District of South Dakota on his plea of guilty to the offense of breaking and entering with intent to commit larceny in Indian Country. Upon receiving a sentence of three years, Appellant was confined at the Federal Detention Center, Sandstone, Minnesota. Thereafter he filed a petition under 28 U.S.C. 2255 with the United States District Court for the District of South Dakota. Upon its denial, he did not appeal, but instead petitioned in the District Court for the District of Minnesota for a writ of habeas corpus, which was dismissed. He appeals therefrom to this Court. We affirm without prejudice to the Appellant again making application in the sentencing court, the United States District Court for the District of South Dakota, under the provisions of 28 U.S.C 2255 and, if unsuccessful in that application, pursuing an appeal therefrom to this Court. See Smith v. Harris (W.D.Mo.1965), 237 F.Supp. 665, at p. 667(1, 2), affirmed per curiam, Smith v. Harris (8 Cir. 1965), 351 F.2d 309.